Tuesday, June 01, 2010

We have photographic proof thatElena Kagan has played softball, and there is some evidence that she is aMets fan.

But by the sometimes fanatical devotion to baseball of the nine-member squad Ms. Kagan hopes to join, that is minor-league stuff.

Consider JusticeSamuel A. Alito Jr., aPhillies fan, who last year contributed an essay toThe Baseball Research Journal. Or JusticeJohn Paul Stevens, aCubs fan, who was at Wrigley Field for Game 3 of the 1932 World Series andwitnessedBabe Ruth’s legendary called-shot home run.

Or JusticeSonia Sotomayor, aYankees fan, whose most famous ruling as a trial judge helped end a baseball strike in 1995. “You can’t grow up in the South Bronx without knowing about baseball,” shesaid at the time.

Justice Alito took his team’s loss in the last World Series particularly hard. And he had to pay off a wager.

“Unfortunately, I had a bet with Justice Sotomayor about the outcome,” hetold The Philadelphia Daily News in April. “We had a bet, cheese steaks v. Nathan’s hot dogs, and I had to provide Nathan’s hot dogs.”

When a new justice joins theSupreme Court, tradition requires the junior justice to arrange a little party. In 2006, when Justice Alito came on board, that task fell to JusticeStephen G. Breyer, aRed Sox fan. Before dessert was served, Justice Breyer introduced a special guest mascot.

“He opened the door,” Justice Alitorecalled, “and the Phillie Phanatic came in and gave me a big hug. And it was great.”

The two had met before, when Justice Alito threw the ceremonial first pitch on Father’s Day in 2006. “It was kind of demoralizing that the Phanatic caught it without a glove,” Justice Alitosaid at the time.

But Justice Alito’s main memory of the encounter was olfactory. “That on-the-field uniform is fragrant, as you would expect,” he told The Daily News. At the dinner, though, he said, the Phanatic “smelled like a flower, so either he got it dry-cleaned or he has his traveling suit.”

If the Senate approves Ms. Kagan’s nomination and recent tradition holds, Justice Sotomayor, now the junior justice, may have to swallow hard and invite Mr. Met to Washington.

Intense devotion to the national pastime at the Supreme Court is not a new phenomenon. In 1973, while the court heard arguments during the National League Championship Series,Justice Potter Stewart passed a note to JusticeHarry A. Blackmun that exhibited a nice sense of proportion.

“V.P. Agnew just resigned!!” the note said,adding, “Mets 2Reds 0.”

The justices resort to baseball analogies even in cases involving other sports. In January, when the court heardarguments in an antitrust case concerning theNational Football League’s apparel licensing practices, Justice Breyer illustrated a point about how the marketplace for items with team logos on them really works — by referring to two baseball teams.

“I don’t know a Red Sox fan who would take a Yankees sweatshirt if you gave it away,” Justice Breyer observed. (The N.F.L. lost the case last week in a unanimousdecision.)

Justice Breyer’s resort to a baseball analogy was unsurprising. “Nothing in the law of sport matches the frequency of baseball’s interaction with the institutions of the law or the tendency of lawmakers who speak of sports to talk in baseball terms,” Ross E. Davies, a law professor at George Mason University, wrote in an essay in The Baseball Research Journal last year.

He provided data. There have been more references to baseball in federal and state judicial opinions over the last century or so than to any other sport, though golf is a surprisingly close second.

It remains to be seen whether baseball will figure in Ms. Kagan’s confirmation hearings. Inannouncing her nomination last month, though,President Obama certainly thought the topic worth mentioning.

Ms. Kagan’s “appreciation for diverse views may also come in handy,” the president said, “as a die-hard Mets fan serving alongside her new colleague-to-be, Yankees fan Justice Sotomayor, who I believe has ordered a pinstriped robe for the occasion.”

As in other areas, Ms. Kagan’s paper trail concerning baseball is thin, and there was some skepticism about Mr. Obama’s characterization of his nominee’s loyalties. But an examination of the considerable pile of materials Ms. Kagan provided to the Senate Judiciary Committee confirmed the president’s assertion.

In 2004, an interviewer for TheHarvard Law Bulletin asked Ms. Kagan an unavoidably direct question: “You’re a New Yorker. So, Yankees or Mets?”

“Mets!” Ms. Kaganreplied, unequivocally. “They didn’t give me much to cheer about last season, but Mets it is.”